28 July 1998
By the Select Committee appointed to
consider Community proposals, whether in draft or otherwise, to
obtain all necessary information about them, and to make reports
on those which, in the opinion of the Committee, raise important
questions of policy or principle, and on other questions to which
the Committee considers that the special attention of the House
should be drawn.
INCORPORATING THE SCHENGEN ACQUIS INTO THE EUROPEAN UNION
Schengen 14, Rev 1
|Revised Draft Council Decision which would define the Schengen acquis for the purpose of its integration into the framework of the European Union.
Schengen 11, Rev 2
|Draft Council Decision determining the legal basis for the Schengen acquis following the Schengen acquis Working Group on 7 April 1998.
PART 1 INTRODUCTION
1. To many people, "Schengen"
means that you don't need a passport to go from one country to
another in mainland Europe. But needless to say, there is a great
deal more to the Schengen agreements than that, and the legal
arrangements which underpin Schengen have developed into as complex
and intricate a web of rules as one might be able to contrive.
The Treaty of Amsterdam set, as an EU objective, the establishment
of the EU as an area of "freedom, security and justice".
Incorporation of the Schengen acquis is a key element of
carrying this objective into effect.
2. Schengen began when
a group of European countries decided to shift the emphasis from
internal border controls to external border controls, so as to
create an area of free movement within a single secure external
border. The original Schengen Agreement was signed in 1985. Since
then, other countries have joined, and a host of other documents
(the Schengen Convention, the Accession Protocols and Agreements,
and the Executive Committee Declarations and Decisions) have been
generated. This vast body of paper is collectively referred to
as "the Schengen acquis". At Amsterdam in 1997
it was agreed that the acquis should be incorporated into
the European Union. At the time the decision was made to incorporate
the acquis, however, it was not clear which documents formed
part of the acquis and which documents did not.
3. Thus, in order to incorporate
the acquis into the EU, it is necessary first of all to
define it, and then to identify the correct Treaty base for each
4. In our 21st Report
(Session 1997-98, HL Paper 87), Defining the Schengen Acquis,
we published evidence from the Home Office describing the progress
which had been made in the task of defining the acquis.
Since then, the Working Group whose task it is to define the acquis
has produced two draft Council Decisions. The draft Decisions
are printed in Appendix 3 of this Report. The first Decision identifies
the whole Schengen acquis; the second allocates a Treaty
base to the parts of the acquis which need one.
5. The initial purpose
of this enquiry was to examine the two draft Decisions in order
to answer the following questions:
(i) What constitutes the Schengen acquis?
(ii) On what grounds will the Council
determine which provisions of the acquis need a legal base
in the EU Treaties?
(iii) Has an appropriate legal base
been identified in each case? Our enquiry into these questions
raised a number of wider policy issues which are also explored
in this Report.
6. The Home Office originally
told the Committee that they expected to complete their analysis
of the acquis, and to be able to suggest appropriate legal
bases for the large bulk of the provisions, within our Presidency
(i.e. by July 1998). This has not proved possible, because of
the delay by the Schengen Presidency (Belguim) in producing the
acquis, and the time taken by the Dutch during their Presidency
to complete their own work. As a result, the Home Office have
not been able to achieve as much as they had expected during the
UK Presidency. Consequently they have not found it possible to
deliver to the Committee the necessary materials in an organised
shape, with their recommendations on the legal bases to be allocated.
Inevitably, this has had an impact on our deliberations, but sufficient
information has emerged in the course of evidence given to us
by the Home Office to enable us to identify a number of important
issues on which Member States will have to make decisions in due
course. Some of these decisions are undoubtedly difficult. Accordingly,
the present Report is an interim document, giving some information
and comment on a subject which has received remarkably little
public attention so far. We shall continue our work in the next
session and hope that we will be able to offer a more definitive
report in due course.
7. The allocation of a
legal base is significant for several reasons. In the first place,
the allocation of a base will determine whether a particular acquis
provision will be incorporated within the First or Third Pillar.
For example, the Schengen acquis includes provisions on
data protection which might be given a legal base in the EC Treaty,
bringing it within the Community sphere (First Pillar). Or, alternatively,
it might be given a base in the Treaty on European Union which
brings it into the Third, inter-governmental, Pillar. There are
different procedures, institutional arrangements and legal arrangements
under each Pillar. Generally the European Parliament and the Court
of Justice have a far greater role in the First than in the Third
Pillar. It is clearly important that issues such as data protection
should be regulated in an appropriate way to achieve the best
8. Secondly, the United
Kingdom and Ireland, unlike the other 13 Member States, have not
signed up to Schengen. Under the Amsterdam Treaty, both obtained
an opt-out from Schengen (although they have a right to opt in
should they wish to do so, and subject to the agreement of the
other Member States). As policy develops in fields such as border
controls and police co-operation, it may well become more difficult
to differentiate between proposals which arise out of Schengen
and those which seek to implement other Treaty provisions. If
the United Kingdom intends to retain its present policy of opting
out except where it seeks agreement to opt in, then it will continue
to be necessary to distinguish Schengen provisions from non-Schengen
provisions. The UK therefore has a strong interest in ensuring
that the allocation is done clearly and logically.
9. Thirdly, the development
of the Schengen acquis and its allocation between the First
and Third Pillars of the Treaty on European Union will do much
to set the terms under which future rules in this broad area of
shared policies will develop. The opt-out secured by the United
Kingdom in the Amsterdam Treaty does not therefore mean that the
process of allocation is of only indirect interest to the United
10. The UK and Irish opt
out is only one of several complicating factors. Special arrangements
apply also to Denmark, which is a member of Schengen but which
objects to the incorporation of any Schengen provisions into the
First Pillar. Matters are further complicated by the fact that
there are two non-EU states (Norway and Iceland) which co-operate
in the Schengen arrangements. Special provision will have to be
made for them. Different decisions on Schengen will therefore
be made by different combinations of States.
11. The draft Decisions
which form the basis of this enquiry have been presented in a
form which is extremely difficult for the reader to use. The substantive
part of the second draft Decision, for example, simply takes the
form of two columns of numbers, the first column being a list
of acquis provisions from the 1990 Convention and the second
column being a list of Treaty bases. No indication is given of
the subject matter of the provisions or bases in question. We
have therefore produced our own annotated version which matches
the acquis provisions with the proposed legal bases in
the EU Treaties. This is printed in Appendix 4. We have also produced
our own summary of the titles of decisions and declarations adopted
by the Schengen Executive Committee (the executive decision-making
body for the Schengen area) which have been deposited in the Library
of this House. A number of these will form part of the acquis
which is to be incorporated. Our summary is printed in Appendix
12. The impenetrability
of the texts made it almost impossible for outside organisations
to make sense of the draft Decisions quickly. We therefore took
evidence only from the relevant Home Office officials (Mr Eland
has been chairing the Working Group on allocation during the UK
Presidency) and from the Minister, Joyce Quin MP. The following
organisations and individuals helped the Committee to formulate
the questions which we asked the Government: the Immigration Law
Practitioners Association, JUSTICE, Mr Tony Bunyan and Professor
David O'Keeffe. We are grateful to them for their help.
13. Part 2 of this Report
explains in some detail the origins, background and content of
the Schengen Agreements. Part 3 explains why and how the Agreements
are now being incorporated into the European Union. Part 4 summarises
and analyses the evidence we received. It is divided into two
sections: Section A deals with the implications of the incorporation
for the United Kingdom, and Section B tackles some more detailed,
technical issues. The Committee's conclusions and recommendations
are set out in bold throughout the text of Sections A and B of
Part 4, and repeated in Part 5.